ENCOD BULLETIN ON DRUG POLICIES IN EUROPE

NR 63 MAY 2010

CRIMINAL LAW REFORM IN SPAIN

Given the continuing weaknesses in Spanish criminal law, several proposals have been elaborated, some more legitimate than others, for changing the Penal Code. Among others, Federation Enlace has presented such a proposal as well.

Far from being exclusively a problem of national scope, reform of the penal code is a prelude to possible legislative movements in other Member States of the European Union and even outside Europe. In Europe we are unable to innovate without the backing of other Member States, and of course, the Resolutions and Directives originating from Brussels. Therefore it is especially important to closely monitor who takes the first step.

Spain’s criminal laws are far from being relaxed and permissive, in fact they are among the most repressive in Europe, using measures contrary to the social rehabilitation of persons involved in criminal proceedings. Prison is the usual resource. In most cases it is almost impossible to apply more logical and appropriate measures to the personal circumstances of the parties involved in these processes.

However, this fact is not perceived by today’s society, which is influenced by the mass media and some political parties that are committed to a radicalization of penalties. This situation is widespread in the Spanish courts, and it is worsened progressively by the desire to change laws immediately after particularly striking crimes that capture the public interest.

The intrusion of the media and general public opinion, which in most cases lacks the necessary training and knowledge to argue, much less in matters of this scale, results usually in the constant demand for absurd legislative changes without legal basis. Principles of minimum intervention, of resocialization, etc., are ignored and over-ridden with the doctrine of “an eye for an eye” and the “iron fist.

Indeed, the use of particularly dramatic cases by polemicists, exposed in a rude way in newspapers and television talk shows, is proving fatal for a reasonable and rational development of criminal law. The polemicists’ goals are, of course, not truth nor justice but merely to present a tone that is aggressive enough so they can continue being called upon by the directors of the media companies.

People with little or no training in these fields are allowed to comment on matters as complicated as that of Marta del Castillo or Cristina Martin (13 year old girl dead in the hands of a girl of 14). Probably a combination of lack of moral leadership and a desire to obtain a characterristic style are allowed to jeopardise a fair criminal procedure radicalizing the parties involved and ending completely out of control.

If, in addition to the above we add the electoral use of this dangerous breeding ground for radicalism by some political parties, we end up with a society that is totally uninformed and unrealistic, and demands social and penal measures that are excessive, unnecessary and clumsy.

All attempts to change laws based on a general feeling of insecurity in today’s society aim to overcriminalize situations that could be resolved out of court, for example, through mediation. This situation results in an increased workload for the courts, producing an exaggerated duration of the procedures that in fact could be settled with a court order.

After the progressive failure of increased penalties, following a swift reaction law, and as a result of the forthcoming reform of the Spanish Penal Code, several professional and social sectors are demanding effective and appropriate legislative alternatives to the criminal reality. Among them are judges, prosecutors, lawyers and criminal law professors, with an obvious and proven training and experience, Faced with the outdated trend of increased penalties, they support alternatives to imprisonment as part of a punitive system clearly aimed to rehabilitate the individual. They demand a system that generates permanent solutions, addressing the clear failure of the short-term solutions. They wish to encourage a criminal policy response that is necessary and proportionate to the circumstances of the punished person.

Among these trends, the Andalusian Federacion Enlace has developed, as it did in 2002 and 2003 for similar reforms, a comprehensive set of proposals to amend our legislation in a punitive socialization, proposals that are above all humane and useful to the community.

In relation to drug trafficking offenses, Enlace proposes to reduce the currently very disproportionate penalties. In the current Penal Code, anyone who traffics in outlawed substances is condemned to prison sentences of 3-9 years or 1-3 years according to whether or not the offense has caused serious damage to health, increasing these penalties in aggravated cases.

Federación Enlace proposes that these penalties become 18 months to 3 years or 6 months to 1 year, offering the possibility for the court to lower these penalties in response to the amount of substance found. The Code to be adopted aims to correct such disproportion, “reducing” these penalties to those of 3-6 years, 1-3 years, a change which really seems inadequate.

Other proposals of the Andalusian Federation are to soften the regime of the execution of prison sentences, increasing its field of action, and incorporate other alternatives such as mediation in criminal cases, not experienced in the Spanish State for ages.

In short Spanish criminal law is causing itself serious damage to those using outlawed substances. Practices that, as we know, will continue to occur. At present we know that the Spanish legislative turned a deaf ear to these and other similar proposals, the party in power having agreed with the opposition to smoothly forward repressive reform moves.

By: Enlace (with the help of Peter Webster)

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